Madras High Court
P.Balakrishnan vs The Inspector Of Police on 22 June, 2022
Crl.O.P.(MD)No. 15690 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22/06/2022
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.15690 of 2019
P.Balakrishnan : Petitioner/De-facto
Complainant
Vs.
1.The Inspector of Police,
Koppampatti Police Station,
Thoothukudi District,
Thoothukudi.
2.Mandir Amoorthi
3.Shanmugasundaram
4.Balasubramanian
5.Auditor Bala : Respondents
Prayer: Criminal Original Petition is filed under
Section 482 Cr.P.C., to call for the records and set aside
the un-numbered Cr.M.P No.-/2019, dated 28/08/2019 in Crime
No.59 of 2015 on the file of the Inspector of Police,
Koppampatti Police Station, pending before the Judicial
Magistrate No.1, Kovilpatti.
For Petitioners : Mr.V.Kathirvelu
Senior Counsel
for Mr.K.Prabhu
For Respondents : Mr.SS.Madhavan
Government Advocate
(Criminal side)
For R2 to R4 : Mr.S.R.Rajagopal
for Mr.A.S.Vaigunth
For 5th Respondent : Died
1/11
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No. 15690 of 2019
O R D E R
This criminal original petition is filed seeking in
order to set aside the order made in un-numbered Cr.M.P
No.-/2019, dated 28/08/2019 in Crime No.59 of 2015 on the
file of the Inspector of Police, Koppampatti Police
Station, pending before the Judicial Magistrate No.1,
Kovilpatti.
2.The facts in brief:-
The petitioner as a complainant filed a complaint
stating that he was running a granite quarry in survey Nos.
697 to 705 in Mudakalankulam Village, Kovilpatti Taluk,
Thoothukudi District, under due licence and permission. He
suffered loss in the business. To mobilise funds, he
approached the second accused. He introduced the accused
Nos.1, 3 and 4. They promised him to secure Rs.50 crores as
loan amount through Bank from a foreigner. Towards the
above said transaction, they pressurised him to execute a
sale deed in favour of the third accused and a power of
attorney in favour of the second accused. Those documents
were also executed. Apart from that, signed blank
promissory notes were executed and blank cheques were also
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Crl.O.P.(MD)No. 15690 of 2019
issued. Believing the words of the accused persons, he
executed all the above said documents. Again, they
pressurised him to execute a promissory note for a sum of
Rs.25,00,000/- stating that only on production of those
documents, loan will be disbursed. After some-time, it came
to his knowledge that on the basis of the power of attorney
executed in favour of the second accused, sale deed, which
was executed by him, was cancelled, on 07/04/2015 and later
sold the same to the first accused. Only at that time, he
realised that he was cheated. The worth of cheated property
is more than Rs.60 Crores. Based upon the complaint given
by the de-facto complainant, a case in Crime No.59 of 2015
was registered for the offences under section 120(B), 406
and 420 IPC. After completing the formalities of
investigation, the Investigating Officer found that it is a
case of 'Mistake of Fact', on the petition of the de-facto
complainant in making such allegations. There was no
intention on the part of the accused persons to cheat the
complainant. Based upon the sale deed only, the revenue
records have been transferred. So, it was closed as
'Mistake of Fact'. Upon the closure report, notice was
issued to the complainant. He also appeared before the
trial court and made his objection. After perusing the
objection and closure report, the trial court chose to
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Crl.O.P.(MD)No. 15690 of 2019
accept the closure report, by order, dated 26/08/2019.
However, liberty was granted to the complainant, who is the
petitioner herein to file a fresh complaint under section
200 Cr.P.C.
3.Challenging the same and to set aside the above said
order, this petition came to be filed by the petitioner.
4.Heard both sides.
5.A preliminary objection was raised by the learned
counsel appearing for the second respondent to the effect
that since final order has been passed by the trial court,
the petitioner ought to have exercised the option under
section 397 Cr.P.C, by filing appropriate revision
petition. Without availing such a course of option, he has
directly filed this petition under section 482 Cr.P.C,
which does not lie.
6.For the purpose of argument, he would rely upon the
judgment of the Hon'ble Supreme Court in a famous case of
Madhu Limaye Vs. State of Maharashtra [(19974 SCC 551],
which has been uniformly followed by the Hon'ble Supreme
Court in the case of Prabhu Chawla Vs. State of Rajasthan
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Crl.O.P.(MD)No. 15690 of 2019
and another [(2016)16 SCC 30. In that case, a distinction
has been made by the Hon'ble Supreme Court between the
interlocutory orders and final orders. Against the final
order, revision will lie. Against the interlocutory order,
no revision will lie.
7.The learned Senior counsel appearing for the
petitioner would rely upon the very same judgment for the
purpose of argument that as per the judgment of the Hon'ble
Supreme Court in Amar Nath Vs. State of Haryana (1977)4 SCC
137: 1977 SCC (Cri) 585, if a situation warrants, inherent
power under section 482 Cr.P.C can be invoked. To the same
effect, in the judgment of the Hon'ble Supreme Court in the
case of Prabhu Chawla Vs. State of Rajasthan and another
[(2016)16 SCC 30}, an observation has been made to the
effect that when a situation demands, the power under
section 482 Cr.P.C can be invoked.
8.Now the question, which arises for consideration is
whether in the facts and circumstances of the case, the
inherent power under 482 Cr.P.C can be invoked.
9.The learned Senior counsel appearing for the
petitioner would submit that in the facts and circumstances
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Crl.O.P.(MD)No. 15690 of 2019
of the case, when a clear case of cheating is made out, the
Magistrate ought to have directed the Investigating Officer
to make further investigation. To show the character of the
accused, he would also rely upon the evidence of the
accused Manthiramoorthy in O.S No.21 of 2016 on the file of
the I Additional District and Sessions Judge, Thoothukudi,
who was the defendant in the above said suit. During the
course of cross examination, he admitted that he was facing
two criminal cases. A case in Crime No.11 of 2019 was
registered on the basis of the complaint give by one
K.C.Diary Products Managing Director Suresh Kumar stating
that he was cheated by Manthiramoorthy. Since he failed to
arrange Rs.50 crore loan amount, a similar case in Crime
No.19 of 2016 was also registered against him on the basis
of the above said cheating that he promised to arrange Rs.
20 crores as loan amount. So pointing out this sort of
admission, the learned Senior counsel would submit that the
modus operandi of the accused is to make promise to arrange
the loan, get the documents registered in their name and
thereafter cheating. According to him, the modus operandi
of the accused was not properly taken care by the trial
court.
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Crl.O.P.(MD)No. 15690 of 2019
10.But I am unable to agree with this line of
argument. Option has been given to the petitioner to file a
private complaint under section 200 Cr.P.C. But he has not
exercised. He has not filed any application before the
concerned court seeking further investigation. Once, the
closure report has been accepted by the trial court and
option has been given to him, he has to exercise that
option and the question of setting aside the closure report
may not arise in the light of such liberty. Even though, a
preliminary objection has been raised by the respondents to
the effect that section 482 Cr.P.C cannot be invoked, but
for the reasons stated above, the petition deserves
dismissal.
11.Another argument that was advanced by the learned
Senior counsel appearing for the petitioner that the 'B'
dairy shows that on 25/09/2018 because of the non
appearance of the de-facto complainant, the closure report
was accepted. But however, on 26/08/2019, another order has
been passed on merits after hearing the objection of the
petitioner and in the last portion of order, the date of
the order is stated to be 28/08/2019. According to him,
this is the discrepancy in the order of the trial court,
which shows a complete non-application of mind of the trial
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Crl.O.P.(MD)No. 15690 of 2019
court. There is a glaring discrepancy in the order.
12.The entire records have been called from the trial
court. It shows that in some of hearings, the de-facto
complainant remained absent and in some of the hearings, he
appeared. On 06/05/2019, the complainant was absent and for
his appearance, posted to 27/05/2019 and at that date, he
was present and later, it was adjourned to 26/08/2019. At
that time, he was heard and order has been passed. But how
in the typed set of papers, which has been filed by the
petitioner, the dates are differently mentioned is not
clear on record. The official documents can be taken into
account. The order has been prepared by the Magistrate on
his own hand. So, I find absolutely no ground to doubt the
veracity of the court proceedings. Only the documents of
the court can be believed and not the typewritten extract
of the 'B' Diary, enclosed in the typed set of papers. This
ground is also not available to the petitioner.
13.In view of the above facts, this criminal original
petition is liable to be dismissed and accordingly, it is
dismissed.
22.06.2022
Internet:Yes/No
Index:Yes/No
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No. 15690 of 2019
er
Note: In view of the
present lock down owing
to COVID-19 pandemic, a
web copy of the order may
be utilized for official
purposes, but, ensuring
that the copy of the
order that is presented
is the correct copy,
shall be the
responsibility of the
advocate/litigant
concerned.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No. 15690 of 2019
To,
1.The Inspector of Police,
Koppampatti Police Station,
Thoothukudi District,
Thoothukudi.
2.The Judicial Magistrate No.1,
Kovilpatti.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD)No. 15690 of 2019
G.ILANGOVAN,J.,
er
Crl.O.P.(MD)No.15690 of 2019
22/06/2022
https://www.mhc.tn.gov.in/judis
